Document Fragment View

Matching Fragments

3. The Election Commission of India, in exercise of its power conferred under Section 61-A of the Representation of People's Act 1951 ( in short to be referred hereafter as ''The Act' ) read with Rule 49-A of the Conduct of Election Rules, 1961 ( in short to be referred hereafter as ''Rules of 1961') issued a direction on 14.12.2017 that the current by- Election of State Legislative Assembly including 207, Sikandara Legislative Assembly, Kanpur Dehat, U.P., notified on 27.11.2017, shall be held as per the schedule mentioned above in para 1 and votes would be recorded by means of Electronic Voting Machine (E.V.M.) and Voters Verifiable Paper Audit Trail (V.V.P.A.T.) printers under Rules of 1961 and Supplementary instructions issued from time to time by the Election Commission of India. The said direction dated 14.12.2017 was published in Official Gazette of the States including the State of Uttar Pradesh.

4. As per the schedule, the candidates filled up the nomination form in terms of Section 33 of the Act. The present Election Petitioner has also filled up her nomination form as a candidate of Samajwadi Party and was allotted a symbol of Cycle. The returned candidate (respondent No. 1), Ajit Singh Pal submitted his nomination form as a candidate of Bhartiya Janata Party (B.J.P.) and was allotted symbol of ''Kamal Ka Phool' (lotus). Similarly the other candidates who have been impleaded as respondent nos. 2 to 10 are of different parties and were also allotted other symbols, details of which are mentioned in para 4 of the petition. The Returning Officer after scrutinizing all the nomination papers of all the candidates of the constituency, published a list of contesting candidates in terms of Section 38 of the Act whose names are given in tabular form in para 5 of the Petition. The counting of votes took place on 14.12.2017 and on the same day, result was announced by the Returning Officer wherein respondent no. 1-returned candidate was illegally declared elected from the constituency in question. The election of the returned candidate is being assailed on the following grounds: (a) the election of the respondent no. 2-returned candidate has been materially affected on account of non-compliance by the Returning Officer of mandatory provision of Sections 64 and 66 of the Act and Rules 49-S, 55-C, 56-C, 56-D and 66-A of the Rules of 1961, who has acted against the said provisions; (b) The election of returned candidate has been materially affected on account of improper reception of votes of Electronic Voting Machines, seals of which were found tampered with and broken at the time of counting; (c) the election of the returned candidate has been materially affected on account of the fact that the presiding officer did not give true copy of the entries made in Form 17-C after obtaining receipts from the polling agents at the closing of poll to the polling agents of the Election Petition and other candidates (this during the arguments was argued to be the main ground on which the learned counsel for the petitioner wanted the election of the elected candidate to be declared null and void and did not lay much emphasis on other grounds which were mentioned in the petition); (d) the election of the returned candidate has been materially affected on account of the fact that there were two rooms in strong room and on the date of counting, the election petitioner and their representatives were present at the counting premises on time but one room out of two strong rooms was opened by the Returning Officer in absence of the election petitioner and her representatives without calling them to remain present at the time of opening of the strong room. After opening of one of the strong rooms, an announcement was made by the Returning officer asking the candidates and representatives to come for opening of the strong room and then only the second room of the strong room was opened in presence of the candidates and their representatives. The election petitioner and her representatives were not permitted to inspect the seals of one of the strong rooms, where, the E.V.Ms. were also kept and were brought for counting; (e) the election of the returned candidate has been materially affected on account of the fact that Returning officer permitted only 14 counting agents to be appointed by the petitioner and other candidates and she (Returning officer) did not permit the petitioner and other candidates to appoint 15th counting agent for central table/Returning officer's table during counting. There was no access of the election petitioner, her election agents and her counting agents to the central table/Returning officer's table during counting. The computation and compilation of data from each table, at the conclusion of a round was done at the Returning officer's table/central table, in absence of election petitioner, her election agents and her counting agents; (f) The Election of the returned candidate has been materially affected on account of the fact that seals of E.V.Ms. were continuously being found tampered with and broken from the very first round of counting till completion of counting. The complaints were made to the Returning Officer by the counting agents of the election petitioner. During counting, complaints were made to the effect that the seals of E.V.Ms. were found broken and tampered with and that E.V.Ms. had been manipulated in favour of the returned candidate. However, the returned candidate was adamant to ignore the complaints and illegally kept counting continued. Even the announcement of votes obtained by each candidate in the counting from 10th to 17th round of counting, were not announced. On protest being made by the election petitioner, her election agents and counting agents, they were forcibly ousted from the counting campus. During this period, the seals of the EVMs were also found broken. The election petitioner and her election and counting agents were permitted in, only from 18th round of counting onwards, however, the seals of the E.V.Ms. were also found broken and tampered with from the 18th round till the completion of 28th round of counting which too was reported by the counting agents of the election petitioner to the Returning officer; (g) the election of the returned candidate has been materially affected on account of the fact that after the completion of counting and after entries made in the result-sheets, but before signature of the Returning Officer on the result-sheet, the election petitioner made application in writing complaining about the seals having been found tampered with and seals being found broken of the E.V.Ms. of the several polling booths during counting, with the request to the Returning officer to count the V.V.P.A.T. print paper slips in drop box of the printer in respect of 391 polling booths, but Returning Officer illegally rejected the application of the Election Petitioner without examination in violation of the direction of Election Commission of India with a false recording that no complaints were ever made by any agent during all rounds of counting and that V.V.P.A.T. print slips were counted of booth no. 135 of table no. 4 in 11th round; (h) the election of the returned candidate has been materially affected on account of the fact that EVMs were manipulated to benefit the returned candidate and accordingly, the seals were tampered with and broken. However in spite of the fact that the Returning officer illegally counted votes of tampered EVMs of booth no. 135 of table no. 4 in 11th round of counting, without recording reasons in writing, to conceal manipulation and benefit given to the returned candidate-respondent no.1; (i) the election of the returned candidate has been materially affected on account of the fact that provisions of Constitution, Act and Rules framed thereunder as well as the orders and instructions issued under the Constitution by the Election Commission of India have not been complied with in counting of votes.

Finding on Issue no. 2.

51. As per this issue, this Court has to decide as to whether provisions of Sections 64 and 66 of the Act and Rule 49S, 55C, 56C, 56D and 66A of the Rules of 1961 have been violated? if yes, its effect.

52. Submission made by the learned counsel for the petitioner is that Returning Officer has acted against the mandatory provisions of the Act provided under Sections 64, 66 and also of the Rules 49S, 55C, 56C, 56D and 56-d and 66-A. The election of the returned candidate has also been materially affected on account of improper reception of votes of the Electronic Voting Machines, seals of which were found tampered or broken at the time of counting. The election of returned candidate has also been materially affected on account of the Presiding Officer not having given true copy of the entries made in Form 17-C obtaining receipt thereof from the polling agents at the close of the polling. The election is also materially affected of the returned candidate on the ground of fact that after completion of the counting and after entries made in the result sheet, result was announced but before the signatures of the Returning Officer on the result-sheet, election petitioner had made an application in writing complaining about the tampered and broken seals of EVMs of several polling booths during counting. The election of the returned candidate has been materially affected on account of the fact that EVMs were manipulated to benefit the returned candidate and in spite of the objection raised, the Returning Officer has illegally counted votes of tampered EVMs of booth no. 135 of table no. 4 in the 11th round of counting and has given benefit to the returned candidate/respondent no. 1. It is further argued that election of returned candidate has been materially affected on account of the fact that provisions of Constitution, Act and Rules framed thereunder as well as orders and instructions issued under the Constitution by the Election Commission of India, have not been complied with in counting of votes. Attention was also drawn by the learned counsel for the petitioner that while deciding the application under Order VII Rule 11 of CPC, wherein prayer was made for rejection of the plaint on the ground of insufficient material facts, the same was disposed of vide order dated 12.4.2019 wherein following was observed by this Court:-

1.

2.

3.

4.

5.

6.

7. Place.....................

Date.....................

.............................................

Signature of Returning Officer

57. For the sake of convenience Section 66-A is being quoted herein below:-

"66A. Counting of votes where electronic voting machines have been used.--In relation to the counting of votes at a polling station, where voting machine has been used,--